Cayetano, OHA will ask state high court to rule on trustees

HONOLULU (AP) — The Hawaii Supreme Court will be asked to decide whether a

recent U.S. Supreme Court ruling created vacancies on the Office of Hawaiian

Affair’s board of trustees, Gov. Ben Cayetano and board chairman Clayton Hee

said Thursday.

The court will be asked if Cayetano has the authority to

appoint interim trustees until the November elections or whether the current

trustees can serve until those elections, they said.

The OHA board on

Thursday approved Hee’s recommendation that they join the Cayetano

administration in seeking guidance from the state’s highest court.

The U.S.

Supreme Court last week struck down the state’s Hawaiians-only restriction in

OHA elections as an unconstitutional racial discrimination. The challenge was

brought by Big Island rancher Harold “Freddy” Rice, who was denied an OHA

ballot in 1996 because he is not a Native Hawaiian.

Cayetano’s immediate

reaction that he would name interim trustees set off a storm of protest by

OHA’s trustees and members of the Hawaiian community, including calls for

peaceful civil disobedience targeting airports and harbors.

When the U.S.

Supreme Court ruled, the state administration implemented a contingency plan it

had developed “to move as quickly as possible to assure that the OHA trust

assets and the services which were given to beneficiaries would continue in a

way that was effective and efficient,” Cayetano said.

But OHA trustee

Mililani Trask saw Cayetano’s action as a move to grab control of OHA’s $377

million trust. On Wednesday, Trask called upon Hawaiians to conduct strategic

peaceful protests to shut down airports and harbors.

Trask called the

decision to approach the Hawaii Supreme Court for a declaratory judgment “a

good first step” that lessens the need for immediate protests. But she said

civil disobedience may still be needed to push the state to resume giving OHA

its share of revenues from ceded lands.

Hee and the majority of the

trustees, who said Trask’s call for protests was inappropriate, hired a top

Honolulu law firm to challenge Cayetano’s action in court on the grounds that

the trustees should be allowed to serve out their terms.

Hee, however, is a

longtime friend of Cayetano. In a hour-long meeting Wednesday, they worked out

the compromise to seek guidance from Hawaii’s highest court.

“We agreed

that the best way to resolve our differences is to petition the Hawaii Supreme

Court for a declaratory opinion to clarify the legal status of the trustees and

the legal authority of the state,” Cayetano said.

With OHA willing to work

jointly to resolve the legal issues, “to proceed and (say) ‘Damn the torpedoes,

I’m going to do what I think is right,’ we’ll end up in court anyway,” he


Hee was grateful an agreement was reached.

“This really is, in my

view, a reasonable way to proceed,” Hee said.

Getting an expedient decision

by the state court “should, at least for the time being, put an end to some of

the more volatile statements made in the community made with respect to civil

disobedience,” Hee said.

Cayetano agreed.

“I never thought Mililani

Trask would carry out her threats in the first place. I know her. I like her. I

think she’s a dedicated advocate for her particular causes, but as this played

out I think it will come clear to her that that course of action is not the

appropriate one,” he said.

If the high court decides the governor needs to

make interim appointments, Cayetano said he may appoint some or all of the

incumbent trustees.

Those appointments may hinge on concerns about OHA’s

“legally questionable” actions under former chairwoman Rowena Akana and the

failure of OHA’s leadership to respond to his administration’s questions about

those actions, Cayetano said.

Hee succeeded Akana as chairman on Jan.


Cayetano cited OHA’s move to set up its own retirement system and

approvals of legal settlements without consulting the attorney general, as

required by law.

“I think that if OHA has taken some actions which are

legally questionable, then it reflects on whether these people should be even

considered for reappointment or not,” he said.

The governor said a

lingering legal question from the Rice v. Cayetano case is whether candidates

for OHA’s board must be Native Hawaiians.

“There is a difference to the

right to vote, which is established in the United States Constitution, and the

right to run for public office, which has all kinds of restrictions put on it,”

he said.

The Legislature should address that question, Cayetano


Because the U.S. Supreme Court did not address the issue of race to

be an OHA candidate, Cayetano said he’ll probably follow existing state law and

appoint only Hawaiians as interim trustees.


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